Staylor v. Ball

Bowie, C. J., delivered the opinion of this Court. The appellees as endorsees, sued the appellant as payee- and endorser of a promissory note dated Baltimore Hov. 8,. 1860, drawn by Pohl & Spreckelmeyer at four months for $361, for value received. The defendant offered a series of eight prayers, all of which were rejected, and instructions given in lieu thereof' by the Court, to the rejection and granting of which respectively, the defendant excepted, and prayed an appeal. The first, second and eighth prayers refer to the demand — 195 — on the maker, and notice of dishonor to the endorser, necessary to make the latter legally responsible. The first and second prayers require a personal demand of the maker, and personal notice to the endorser, of demand and refusal to pay, if the jury believe the maker and endorser respectively, had a known and recognized place of business in Baltimore, and were generally known, and that by the custom of Baltimore City, Notaries are expected to notify endorsers at their places of business or residences, if any they have, without reference to the knowledge of the holder of the note or Notary Public, of the residence or place of business of the maker or endorser, or of any want of diligence on their part, to obtain such information. The defendant’s third prayer asserts, that an offer to compromise not accepted, is no waiver of the defendants light of defence as endorser, unless the jury shall further find that at the time of the offer as above, the defendant knew of his rights of defence and expressly waived or abandoned them. 4th. That if the offer as aforesaid was made and not accepted, such offer is not evidence to go to the jury under the declaration in this case. The 5th and 6tli refer to the form and sufficiency of notice of protest. They affirm, if the notice purporting to he sent to the defendant as endorser, was not directed to him at his place of residence or Post Office, and the protest does not state such fact of direction, or any place of direction of notice to the first endorser, or if the notice did not contain a true description of the note, the jury must find for the defendant. The 7th declares, there is no evidence of a notice of dishonor of the note mentioned in this action, asserting it had been presented to the makers at maturity, and dishonored, and that defendant would he held responsible. The 8th affirms that if the makers and endorsers as afore — 196 — said had known and recognized places of business in the city, and that Charles R. Coleman, one of the endorsers, lived in the same city, notice of the protest must be personal, if possible. • As to notes payable without reference to any particular place, the general rule,is, that a demand must be made of the maker of the note, or at his residence or place of business, (if he has one or it is known) within the city, or place where the note is payable, in order to bind the endorser. Story on Prom. Notes, sec. 235. This rule necessarily implies knowledge on the part of the holder, of the place of residence or business. Accordingly, where the circumstances are such as to render it difficult to acquire this knowledge, the rule is relaxed. Chan. Kent Com. vol. 3, sec. 41, p. 95, says, “There is a great deal of perplexity and confusion in the cases on this subject, arising from refined distinctions and discordant opinions, and it becomes very difficult to decide what is precisely the law of the land as to the sufficiency of the demand upon the maker of the note or the acceptor of the bill." If there be no particular and certain place identified and appointed, other than a city at large, and the party has no residence there, the bill may be protested in the city on the day, without inquiry, for that would be an idle attempt. The general principle is, that due diligence must be used to find out the party and make the demand, and the inquiry will always be whether under the circumstances of the case due diligence has been used. * * * * * * The presumption is, that the maker resides where the note is dated, and that he contemplates payment there. But it is presumption only, and if the maker resides elsewhere within the State, when the note falls due, and that be Jcnoiun t'o the holder, demand must be made at the makers place of residence. Vide Note 1, Story on Prom. Notes, 281. “If the maker has no known residence or place where a — 197 — presentment can be made, then the holder will in like manner be excused from any presentment.” Story on Prom. Notes, sec. 237, note 4, and authorities there cited. These general principles were recognized and adopted by this Court in the case of Nailor vs. Bowie, 3d Md. Rep., 256, and Sasscer vs. Whitely & Stone, 10 Md. Rep., 102, 104. The obligation to make a presentment and demand of. payment of the maker of a note, extends to the case of a resident within the State, (if known to the holder) as well as to a resident of a city, but in the case in 10 Md. Rep., 102, 104, the demand at the Post Office, of a note dated at Baltimore was deemed sufficient upon proof, that the Notary was unable to ascertain where the maker resided, although the defendant proved he had lived for forty years near Upper Marlborough, and had for the last thirty years extensive business transactions both with commission houses and banking institutions. A personal demand and personal notice being dependent upon the knowledge of the holder, of the place of residence or business, of the maker and endorser, it is clear from these authorities, the Court correctly refused the 1st, 2nd and 8th prayers of the defendant, which required a demand of payment of the maker, at his residence or place of business, and personal notice of non-payment to the endorser, or notice at his place of business, without regard to the fact, whether the holder or Notary had knowledge of the residence or place of business of the makers or endorser respectively, or used due diligence to ascertain'the same. To the third prayer of the defendant, requiring the jury shall find that at the time the offer of compromise was made, the defendant knew of his rights of defence, and expressly waived and abandoned them, or such offer, etc. was no waiver, was too broad a proposition, as waiver is often more certainly indicated by acts than by words. — 198 — The conduct of the defendant, which included all that transpired at his interview with the plaintiff’s’ counsel, was material and proper evidence to go to the jury, under the second issue in the case, the possession of the property for which the note was given was circumstantial evidence that the endorser was indemnified to some extent for his liability, and if he had been substituted for the maters, by his own act, he could not retain the thing sold, and refuse to pay the price. We do not perceive any evidence to warrant the' fifth prayer of the defendant. It proceeds upon an hypothesis directly contrary to the evidence. It was proved the defendant resided in the City of Baltimore, and had sl place of business there, where he received letters addressed to him through the Post Office, and that a letter addressed uto him would, in the regular course of business be received by him the same day it was mailed, or the following morning. The Notary testifies that on the same day of the protest, he addressed written notices to the drawers and endorser of the note, informing them it had not been paid, payment thereof having been demanded and refused, and they would be held responsible therefor, and dropped notices in the Baltimore Post Office, directed to the drawers and first endorser, after diligent search and inquiry, and failure to find them. Thus it appears the notice was directed to the defendant, and put in the Post Office of the city in which he resided and did business, and from which he usually received letters the same day or next morning. The 6th prayer assumes a discrepancy between the description of the note sued on, and that mentioned in the protest, etc., no such variation’ appears in the testimony, and therefore its rejection was proper. The 1th instruction amounts to a declaration, that there is no evidence of notice to the defendant of demand, nonpayment, etc., in the case. — 199 — The protest itself was prima facie evidence of the presentment of the note for payment and its non-payment; and that notice of such presentment and non-payment were given the parties in the manner therein stated. Code, Art. 14, secs. 6 and 7. All of which was confirmed by the evidence of the Notary Public. It appears from this summary of the several prayers of the defendant they were not supported by the law or the evidence, and therefore properly rejected. The instructions given by the Court in lieu of those rejected are objected to, because they submitted to the jury to find among other facts “whether the Notary used reasonable diligence to ascertain the residences or places of business of the drawers of the note and endorser, and could not ascertain the same,” which, it is contended, it was the province of the Court to determine. In Whitridge vs. Rider, 22 Md. Rep., 548, it was held by tbe Court as follows : “ What constitutes duo diligence upon any state of facts, agreed or to be found by the jury, is a question of law for the Court, and it is very difficult to lay down any general rule applicable to all cases. Each depends much on its special circumstances. This, however, can be stated generally, that if the holder does not know where the endorser or other party to be notified lives, but can inform him.self by reasonable endeavor or diligent inquiry, he must do so.” An endorser is entitled to strict notice, by which is meant, “ that reasonable diligence shall be employed and reasonable efforts made to give it.” 1 Parsons on Bills & Notes, 490, note a. 11 Md. Rep., 486. 1 H. & G., 248. 15 Md. Rep., 285. The Notary must resort to all proper parties to the note within his reach; he must apply to the maker of the note if he is known and within reach. The evidence in this cause shows the Notary inquired of the Cashier of the Mechanics’ Bank, the holder of the — 200 — note, and examined the City Directory to ascertain the residence and place of business of the drawer and endorser, (the defendant) and could obtain no information of either; that after'diligent search and inquiry, and failing to find them, he presented the note and demanded payment at the Baltimore Post Office and Merchants’ Exchange, and found no one to pay it; he then addressed written notices to the drawer and endorser informing them, etc., and dropped the notices in the Baltimore Post Office, directed to the drawer and first endorser, and mailed notices under covers for other endorser directed to N. F. Palmer, Esq., New York. It was further proved in the cause that the endorser did business under the name of “McAleer ; ” that he received letters through the Post Office addressed to himself in his own name, as well as in the name of “ McAleer & Co.,” and a letter addressed to him, or a notice, would, in the regular course of business, he received by him the same day it was mailed or the following morning, and that it was the usage or custom in Baltimore city if the makers- and endorsers cannot be found, to make inquiry of the bank from which the note was received, and examine the. City Directory, and if that does not disclose the place of business or residence of the parties, to make demand in some public place, usually the Post Office and Merchants’ Exchange, and to address the notices for the endorsers to them and deposit them so addressed in the city Post Office. The Notary having complied not only with the general requisitions of mercantile practice, but the local custom of the city,-as well as the demands of the law, in exercising reasonable diligence and care to ascertain the residences and places of business of the maker and endorsers, and make presentment and demand payment, and in default thereof to give notice to the endorser, the Court, if it had been asked, must have held and instructed the jury, if they be — 201 — lieved the evidence, that the plaintiff' had used due diligence in those respects. In this State, since Jones vs. Wilmot, 1 H. & J., 477, it has been held to he the province of the Court to determine whether or not due diligence has been used by the holder of the note or bill to recover the money from the maker or acceptor, so as to fix the liability of the endorser; yet the same case decides that in the absence of such diligence the endorser may recover if it appears that the endorser subsequently promised to pay the amount of the note. This Court has repeatedly held that although there was error in the instruction of the Court below, such error will not he ground for reversal if it appears the party appealing was not injured thereby. 3 Gill, 459. 4 Gill, 406. 8 Md. Rep., 208, 274. Hanson vs. Campbell, lessee, 20 Md. Rep., 233. In the present case the instructions given by the Court submitted to the jury to find whether the plaintiff had used due diligence in making demand of the maker and giving notice to the endorser of non-payment and dishonor ; and also whether the defendant, in the absence of knowledge of the omission to make such demand and give such notice, had promised to pay the debt. The jury finding for the plaintiff must have found the facts enumerated in the bill of exceptions to be true upon one hypothesis or the other ; if they found upon the first hypothesis they arrived at the same conclusion of law which the Court would have reached, and should have directed the jury to he sufficient proof of due diligence if they believed the evidence on that point; if they found the promise subsequent, with knowledge, etc., they found such facts as rendered the question of diligence, immaterial. So that in no aspect was the defendant injured by tbe instructions given. The Court below in the instructions granted gave the defendant the benefit of all want of knowledge of non-pre — 202 — sentment and non-payment, if such existed, by requiring the jury to find his promise to pay the amount of the note, was made with a knowledge of the fact that no legal demand had been made on the drawer for payment before it should operate as a waiver of notice. (Decided March 13th, 1866.) In the absence of reasonable diligence to find the residence or place of business of the maker and endorser, then the jury were required to find actual notice or a promise to pay, with knowledge of the fact that notice of non-payment had not been regularly given. Every precaution seems to have been taken to inform the jury of the facts necessary to be found to entitle the plaintiffs to recover, except the omission to defi.De what was due diligence in law on the part of the Notary. This, we have seen, not prejudicing the defendant, is no cause for reversal. Judgment affirmed.